JOHN P. ELWOOD DEPUTY ASSISTANT ATTORNEY GENERAL OFFICE OF

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					              STATEMENT


                  OF


          JOHN P. ELWOOD
DEPUTY ASSISTANT ATTORNEY GENERAL
      OFFICE OF LEGAL COUNSEL
UNITED STATES DEPARTMENT OF JUSTICE



             BEFORE THE




     COMMITTEE ON THE JUDICIARY
UNITED STATES HOUSE OF REPRESENTATIVES



             CONCERNING

     PRESIDENTIAL SIGNING STATEMENTS




            PRESENTED ON

            JANUARY 31, 2007
                              STATEMENT OF
                             JOHN P. ELWOOD
                  DEPUTY ASSISTANT ATTORNEY GENERAL
                        OFFICE OF LEGAL COUNSEL
                 UNITED STATES DEPARTMENT OF JUSTICE
                               BEFORE THE
                     COMMITTEE ON THE JUDICIARY
                UNITED STATES HOUSE OF REPRESENTATIVES
                                   ON
                   PRESIDENTIAL SIGNING STATEMENTS

                                     January 31, 2007

       Mr. Chairman, Ranking Member Smith, and Members of the Committee, I
appreciate the opportunity to appear here today to discuss the purpose and history of
presidential signing statements.

        Like most Presidents before him, President Bush occasionally issues statements
on signing legislation into law. Presidents have used these “signing statements” for a
variety of purposes. At times Presidents use signing statements to explain to the public
why the President endorses a bill and what the President understands to be its likely
effect. At other times, Presidents use the statements to guide subordinate officers within
the Executive Branch in enforcing or administering a particular provision.

        Presidents throughout history also have issued what may be called
“constitutional” signing statements, and it is this use of the signing statement that has
recently been the subject of public attention. Presidents are sworn to “preserve, protect,
and defend the Constitution,” and thus are responsible for ensuring that the manner in
which they enforce acts of Congress is consistent with America’s founding document.
Presidents have long used signing statements for the purpose of “informing Congress and
the public that the Executive believes that a particular provision would be
unconstitutional in certain of its applications,” The Legal Significance of Presidential
Signing Statements, 17 Op. O.L.C. 131, 131 (1993), or for stating that the President will
interpret or execute provisions of a law in a manner that would avoid possible
constitutional infirmities. As Assistant Attorney General Walter Dellinger noted early
during the Clinton Administration, “[s]igning statements have frequently expressed the
President’s intention to construe or administer a statute in a particular manner (often to
save the statute from unconstitutionality).” Id. at 132.

        President Bush, like many of his predecessors dating back to President James
Monroe, has issued constitutional signing statements. The constitutional concerns
identified in these statements often pertain to provisions of law that could be read to
infringe explicit constitutional provisions (such as the Recommendations Clause, the
Presentment Clauses, and the Appointments Clause) or to violate specific constitutional
holdings of the Supreme Court. (Common examples are set forth in Part II below.) As
such, President Bush’s signing statements are indistinguishable from those issued by past
Presidents. As the Congressional Research Service concluded in its recent
comprehensive study, “it is important to note that the substance of [President Bush’s]
signing statements do not appear to differ substantively from those issued by either
Presidents Reagan or Clinton.” Presidential Signing Statements: Constitutional and
Institutional Implications, CRS Reports, at CRS-12 (Sept. 20, 2006); accord Curtis A.
Bradley & Eric A. Posner, “Signing Statements: It’s a President’s Right,” Boston Globe
(Aug. 3, 2006) (“The constitutional arguments made in President Bush’s signing
statements are similar—indeed, often almost identical in wording—to those made in Bill
Clinton’s statements.”). In addition, the number of such statements issued by President
Bush is in keeping with the number issued by every President during the past quarter
century.

        It is important to establish at the outset what presidential signing statements are
not: an attempt to “cherry-pick” among the parts of a duly enacted law that the President
will choose to follow, or an attempt unilaterally to redefine what the law is after its
enactment. Presidential signing statements are, rather, a statement by the President
explaining his interpretation of and responsibilities under the law, and they are therefore
an essential part of the constitutional dialogue between the Branches that has been a part
of the etiquette of government since the early days of the Republic. Nor are signing
statements an attempt to “override” duly enacted laws, as some critics have suggested.
Many constitutional signing statements are an attempt to preserve the enduring balance
between coordinate Branches of Government, but this preservation does not mean that
the President will not enforce the provision as enacted.

        One common example illustrates the natural course by which a President may
object to a constitutionally problematic provision without deviating from the text of a
statute or failing to abide by its provisions. In the Appointments Clause context
discussed below, Congress sometimes attempts to place undue restrictions on the pool
from which the President may select appointment candidates. As a mandatory directive
to the President, such restrictions violate the Appointments Clause, U.S. Const., art. II, §
2, as each of the past four Presidents has noted in signing statements. If construed as a
recommendation from Congress, however, these appointments provisions are
constitutional and are often routinely followed. A constitutional signing statement on this
issue, therefore, is not a declaration that the President will not follow the appointments
provisions, but that he remains free to abide by them as a matter of policy. And it is
commonly the case that Presidents do abide by such appointment provisions.

        Similarly, a surprising number of newly enacted statutes seek to require the
approval of a congressional committee before execution of a law, despite well-settled
Supreme Court precedent that such “legislative veto” provisions violate the Presentment
and Bicameralism Clauses of the Constitution, art. I, § 7. See INS v. Chadha, 462 U.S.
919, 958 (1983). More than 20 years after that clearly controlling Supreme Court
decision, unconstitutional legislative veto provisions remain so common that President
Bush has had to raise the issue in approximately 55 of his 126 constitutional signing
statements. See, e.g., Statement on Signing the Military Quality of Life and Veterans
Affairs Appropriations Act, 41 Weekly Comp. Pres. Doc. 1799, 1799 (Nov. 30, 2005)



                                             2
(“The Constitution requires bicameral passage, and presentment to the President, of all
congressional actions governing other branches, as the Supreme Court of the United
States recognized in INS v. Chadha (1983), and thus prohibits conditioning executive
branch action on the approval of congressional committees. Many provisions of the Act
conflict with this requirement and therefore shall be construed as calling solely for
notification, including the following: ‘Department of Defense Base Closure Account
2005,’ ‘Department of Veterans Affairs, Information Technology Systems,’ ‘Department
of Veterans Affairs, Construction, Major Projects,’ and sections 128, 129, 130, 201, 211,
216, 225, 226, 227, and 229.”); Statement on Signing the Agriculture, Rural
Development, Food and Drug Administration, and Related Agencies Appropriations Act,
41 Weekly Comp. Pres. Doc. 1701, 1701 (Nov. 10, 2005) (“The executive branch shall
construe certain provisions of the Act that purport to require congressional committee
approval for the execution of a law as calling solely for notification, as any other
construction would be inconsistent with the principles enunciated by the Supreme Court
of the United States in INS v. Chadha.”).

        When constitutionally problematic provisions such as these are placed in
otherwise constitutional bills, signing statements serve the appropriate function of
reminding Congress and members of the Executive Branch of the deficiency. Again,
however, President Bush and past Presidents to our knowledge have not ignored these
provisions, but have instead done their utmost to apply them in a manner that does not
violate the Constitution by ordering Executive Branch officials to notify congressional
committees as anticipated by the provisions. See id. In short, where a President has no
choice but to avoid a constitutional violation, the President’s best course is to announce
publicly his intention to construe the provision constitutionally. Where the constitutional
violation stems not from the substance of a provision but from its mandatory nature, as
with the Appointments Clause, the President’s best course is to note the deficiency,
leaving the President free to act in accordance with the provision as a matter of policy.

        In another category of cases, Presidents recognize a statute as constitutional on its
face, and anticipate that it will be applied constitutionally, but also foresee that in extreme
or unanticipated circumstances it could raise the possibility of an unconstitutional
application. An appropriate signing statement may therefore announce that the President
fully intends to apply the law as far as possible, consistent with his duty to the
Constitution.

        The charge that constitutional signing statements are a “power grab” and encroach
on Congress’s power to write the law is fundamentally flawed. Signing statements do not
alter the constitutional balance between the President and Congress. That is established
by the Constitution itself, and neither the President nor Congress can alter it through their
actions. Signing statements do not expand the President’s authority: The President
cannot adopt the provisions he prefers and ignore those he does not; he must execute the
law as the Constitution requires. Nor do signing statements diminish congressional
power. Congress has no power to enact unconstitutional laws, and that is true whether
the President issues a constitutional signing statement or not.




                                              3
                                             I.

        Signing statements have been an integral part of the constitutional dialogue
between the Branches of Government since the early days of the Republic. After a
thorough study, Assistant Attorney General Dellinger concluded that the use of signing
statements “to raise and address the legal or constitutional questions . . . presented by”
enrolled bills “can be found as early as the Jackson and Tyler Administrations, and later
Presidents, including Lincoln, Andrew Johnson, Theodore Roosevelt, Wilson, Franklin
Roosevelt, Truman, Eisenhower, Lyndon Johnson, Nixon, Ford and Carter, also engaged
in the practice.” 17 Op. O.L.C. at 138. Even as early as 1821, President James Monroe
issued a signing statement in which he stated that he would construe a statutory provision
in a manner that did not conflict with his prerogative to appoint officers. See 2 A
Compilation of the Messages and Papers of the Presidents 698 (James D. Richardson
ed.,1897). In 1830, Andrew Jackson “signed a bill and simultaneously sent to Congress a
message” setting forth his interpretation “that restricted the reach of the statute.” 17 Op.
O.L.C. at 138 (quoting Louis Fisher, Constitutional Conflicts between Congress and the
President 128 (3d ed. 1991)).

        The use of the constitutional signing statement has become more common in
recent presidencies, beginning with President Reagan. While the task of counting
constitutional signing statements is inexact because of the difficulty of characterizing
such statements, Presidents Reagan, George H.W. Bush, Clinton, and George W. Bush
have apparently issued constitutional signing statements with respect to similar numbers
of laws. By our count, President Reagan issued constitutional signing statements with
respect to 80 laws; George H.W. Bush, 114; Clinton, 80. The numbers in the academic
literature are comparable or even higher. By our count, President Bush has issued
constitutional signing statements with respect to 126 bills as of January 25 of this year.
Some Presidents have in the past used signing statements simply to praise a piece of
legislation, and even including non-constitutional signing statements, the total number of
signing statements is only a small fraction of the number of laws passed by Congress.
For example, President Bush issued a total of 28 signing statements for both bills and
joint resolutions in 2003, 25 in 2004, 14 in 2005, 23 in 2006, and 1 thus far this year,
totaling only approximately 9 percent of the 498 public laws passed by the 108th
Congress and the 482 public laws passed by the 109th Congress.

        This practice of issuing signing statements does not mean that a President has
acted contrary to law or the Legislative Branch. The practice is consistent with, and
derives from, the President’s constitutional obligations, and is an ordinary part of a
respectful constitutional dialogue between the Branches. When Congress passes
legislation containing provisions that could be construed or applied in certain cases in a
manner contrary to well-settled constitutional principles, the President can and should
take steps to ensure that such laws are interpreted and executed in a manner consistent
with the Constitution. The Supreme Court specifically has stated that the President has
the power to “supervise and guide [Executive officers’] construction of the statutes under
which they act in order to secure that unitary and uniform execution of the laws which
Article II of the Constitution evidently contemplated in vesting general executive power



                                             4
in the President alone,” Myers v. United States, 272 U.S. 52, 135 (1926); see also
Bowsher v. Synar, 478 U.S. 714, 733 (1986) (“Interpreting a law enacted by Congress to
implement the legislative mandate is the very essence of ‘execution’ of the law.”).

        The President takes an oath to “preserve, protect and defend the Constitution of
the United States.” U.S. Const., art. II, § 1, cl. 8. The President has the responsibility
and duty also to faithfully execute the laws of the United States. U.S. Const., art. II. § 3.
But these duties are not in conflict: the law the President must execute includes the
Constitution—the supreme law of the land. Because the Constitution is supreme over all
other law, the President must resolve any conflict between statutory law and the
Constitution in favor of the Constitution, just as courts must.

        This presidential responsibility may arise most sharply when the President is
charged with executing a statute, passed by a previous Congress and signed by a prior
President, a provision of which he finds unconstitutional under intervening Supreme
Court precedent. A President that places the statutory law over the constitutional law in
this instance would fail in his duty faithfully to execute the laws. The principle is equally
sound where the Supreme Court has yet to rule on an issue, but the President has
determined that a statutory law violates the Constitution. To say that the principle is not
equally sound in this context is to deny the President’s independent responsibility to
interpret and uphold the Constitution. It is to leave the defense of the Constitution only
to two, not three, of the branches of our government. See United States v. Verdugo-
Urquidez, 494 U.S. 259, 274 (1990) (“The Members of the Executive and Legislative
Branches are sworn to uphold the Constitution, and they presumably desire to follow its
commands.”); Webster v. Doe, 486 U.S. 592, 613 (1988) (Scalia, J., dissenting)
(“Members of Congress and the supervising officers of the Executive Branch take the
same oath to uphold the Constitution that we do . . . .”).

        In the past year alone, many prominent commentators, including respected
scholars and former officials of the Clinton Administration’s Justice Department, have
said that the use of signing statements is a legitimate presidential power. For example,
Professors Tribe, Bradley, and Posner have acknowledged the appropriateness of
constitutional signing statements. See Laurence H. Tribe, “‘Signing statements’ are a
phantom target,” Boston Globe (Aug. 9, 2006); Curtis A. Bradley & Eric A. Posner,
“Signing Statements: It’s a President’s Right,” Boston Globe (Aug. 3, 2006); Curtis A.
Bradley & Eric A. Posner, Presidential Signing Statements and Executive Power, Const.
Commentary (forthcoming). Professor Dellinger has done the same, reiterating the views
that he expressed as Assistant Attorney General during the Clinton Administration (and
that I have quoted above). Walter Dellinger, “A Slip of the Pen,” N.Y. Times, July 31,
2006. And the Congressional Research Service concluded that “in analyzing the
constitutional basis for, and legal effect of, presidential signing statements, it becomes
apparent that no constitutional or legal deficiencies adhere to the issuance of such
statements in and of themselves.” Presidential Signing Statements at CRS-1. These
analyses by commentators who span the ideological spectrum represent the mainstream
opinion among informed constitutional scholars.



                                              5
        I am aware that the American Bar Association issued a report last year that
reached a contrary conclusion. See American Bar Association, Report of the Task Force
on Presidential Signing Statements and the Separation of Powers Doctrine (Aug. 2006).
We respectfully disagree with the analysis in that report, which suggests that a President
has no choice but to enforce a clearly unconstitutional provision of law until the provision
is struck down by a court, and that a President has no choice but to veto a bill if even a
minor provision of an omnibus bill violates the Constitution in some applications. As
noted, scholars of many different viewpoints share our disagreement with the report’s
constitutional analysis.

        To be sure, people may fairly disagree with the language in particular signing
statements, because there is honest disagreement in many instances about what the
Constitution requires. But as this testimony will reveal, President Bush’s signing
statements are of a piece with prior administrations’ signing statements. He is exercising
a legitimate power in a legitimate way.

        To appreciate the value of signing statements, consider the alternatives. As we
understand the argument, some critics of presidential signing statements would prefer that
a President either reject the legislation outright through veto or remain silent upon
signing the legislation. First, it has never been the case that the President’s only option
when confronting a bill containing a provision that is constitutionally problematic is to
veto the bill. Presidents Jefferson (e.g., the Louisiana Purchase), Lincoln, Theodore
Roosevelt, Wilson, Franklin Roosevelt, Truman, Eisenhower, Kennedy, Lyndon Johnson,
Ford, Carter, as well as George H.W. Bush and Clinton, have signed legislation rather
than vetoing it despite concerns that particular aspects of the legislation posed
constitutional difficulties. See 17 Op. O.L.C. at 132 nn.3 & 5, 134, 138; see also
Chadha, 462 U.S. at 942 n.13 (“it is not uncommon for Presidents to approve legislation
containing parts which are objectionable on constitutional grounds”). Assistant Attorney
General Dellinger explained early during the Clinton Administration: “In light of our
constitutional history, we do not believe that the President is under any duty to veto
legislation containing a constitutionally infirm provision.” 17 Op. O.L.C. at 135. To be
sure, Presidents have the option of vetoing a bill most of whose provisions are clearly
constitutional but that contains a few provisions that may be read to permit certain
unconstitutional applications. It is more sensible, however, to sign the bill while giving
the problematic provisions a “saving” construction.

        Respect for the Legislative Branch in this circumstance is not shown by the veto
of an otherwise well crafted bill, but by a candid and public signing statement.
Compared to vetoing a bill, giving constitutionally infirm provisions a “saving”
interpretation through a signing statement gives fuller effect to the wishes of Congress by
giving complete effect to the great bulk of a law’s provisions and the fullest possible
effect to even constitutionally problematic provisions. This approach is not an affront to
Congress. Instead, it gives effect to the well-established legal presumption that Congress
did not choose to enact an unconstitutional provision. As Assistant Attorney General
Dellinger explained, this practice is “analogous to the Supreme Court’s practice of
construing statutes, where possible, to avoid holding them unconstitutional.” 17 Op.



                                             6
O.L.C. at 133. A veto, by comparison, would render all of Congress’s work a nullity,
even if, as is often the case, the constitutional concerns involve relatively minor
provisions of major legislation. The value of this ability to preserve legislation has
grown in step with the use of large omnibus bills in the last few decades.

        It should also be noted that a veto may only delay, not avoid, the constitutional
question. If a President’s veto is overridden by Congress, the resulting statute still must
be interpreted and executed by that and future Presidents in keeping with the
Constitution. To return to the example of a Chadha violation, where a provision attempts
to condition future executive action on the approval of a congressional committee, the
President and the courts, including the Supreme Court, will still be compelled to find that
provision unconstitutional, and therefore unenforceable. Moreover, this was true even
before the definitive Supreme Court ruling in Chadha. See, e.g., Chadha, 462 U.S. at
942 n.13 (citations omitted) (“11 Presidents, from Mr. Wilson through Mr. Reagan, who
have been presented with this issue have gone on record at some point to challenge
congressional vetoes as unconstitutional.”).

         As for the second suggested alternative to signing statements—presidential
silence—it is not clear what critics of signing statements hope will be gained by such a
course. Signing statements have the virtue of making the President’s views public. A
statement may notify the Congress and the American people of concerns that the
President has about the legislation and how the Executive Branch will construe a
particular law. Or it may serve only as a reminder to those in the Executive Branch
charged with executing a law that the law must be applied within the confines of the
Constitution. Neither Congress nor the public would be better served by such statements
being restricted to an internal Executive Branch audience. Employing signing statements
to advise Congress of constitutional objections is more respectful of Congress’s role as an
equal branch of government than public silence, and promotes a constitutional dialogue
that is healthy in a democracy.

        The last possible alternative—for the President to remain publicly silent and not
to direct subordinate executive branch officials to construe the law in a constitutional
manner—would flatly contradict the Constitution’s requirement that the President “take
care that the Laws [are] faithfully executed.” Recent administrations, including the
Reagan, George H.W. Bush, and Clinton Administrations, consistently have taken the
position that “the Constitution provides [the President] with the authority to decline to
enforce a clearly unconstitutional law.” 17 Op. O.LC. at 133 (opinion of Assistant
Attorney General Dellinger) (noting that understanding is “consistent with the view of the
Framers” and has been endorsed by many members of the Supreme Court). Indeed,
“every President since Eisenhower has issued signing statements in which he stated that
he would refuse to execute unconstitutional provisions.” Presidential Authority to
Decline to Execute Unconstitutional Statutes, 18 Op. O.L.C. 199, 202 (1994) (opinion of
Assistant Attorney General Dellinger) (noting that “consistent and substantial executive
practice” since “at least 1860 assert[s] the President’s authority to decline to effectuate
enactments that the President views as unconstitutional” id at 199.); see also Attorney
General’s Duty to Defend and Enforce Constitutionally Objectionable Legislation, 4A



                                             7
Op. O.L.C. 55, 59 (1980) (opinion of Benjamin R. Civiletti, Attorney General to
President Carter) (“the President’s constitutional duty does not require him to execute
unconstitutional statutes”); 2 Debates in the Several State Conventions on the Adoption
of the Federal Constitution 446 (2d ed. 1836) (noting that just as judges have a duty “to
pronounce [an unconstitutional law] void . . . In the same manner, the President of the
United States could . . . refuse to carry into effect an act that violates the Constitution.”)
(statement of James Wilson, signer of Constitution from Pennsylvania). Rather than
tacitly placing limitations on the enforcement of provisions (or declining to enforce
them), as has been done in the past, signing statements promote a constitutional dialogue
with Congress by openly stating the interpretation that the President will give certain
provisions.

        Finally, some have raised the concern that courts will use signing statements to
interpret statutes in contravention of the legislative goal. Signing statements, of course,
are not binding on the courts; they are principally an exercise of the President’s
responsibility as head of the Executive Branch to determine the correct interpretation of
the law for purposes of executing it faithfully. There must be an authoritative
interpretation of the law within the Executive Branch, and it is the President’s
responsibility as Chief Executive to ensure that the law is authoritatively interpreted
consistent with the Constitution.

                                              II.

        Many of President Bush’s constitutional signing statements have sought to
preserve three specific constitutional provisions that are sometimes overlooked in the
legislative process: the Recommendations Clause, the Presentment Clauses, and the
Appointments Clause. Far from using signing statements in “unprecedented fashion,” as
some critics have contended, this President has employed constitutional signing
statements in a way completely consistent with those of his predecessors. Three
additional important areas that have elicited comment from Presidents are the protection
of confidential national security information, the preservation of the Executive’s foreign
affairs power and position as Commander in Chief, and the preservation of the
President’s status as head of a unitary Executive Branch.

        Recommendations Clause. Presidents commonly have raised concern when
Congress purports to require the President to submit legislative recommendations,
because the Constitution vests the President with discretion to do so when he sees fit,
stating that he “shall from time to time . . . recommend to [Congress’s] Consideration
such Measures as he shall judge necessary and expedient.” U.S. Const., art. II, § 3, cl. 1.
By our count, President Bush raised this particular concern in approximately 67 of his
126 constitutional signing statements. President Bush’s statements on this point,
moreover, are indistinguishable from President Clinton’s. Compare, e.g., Statement on
Signing the Intelligence Authorization Act for Fiscal Year 2005 40 Weekly Comp. Pres.
Doc. 3012, 3012 (Dec. 23, 2004) (President Bush) (“To the extent that provisions of the
Act, such as sections 614 and 615, purport to require or regulate submission by executive
branch officials of legislative recommendations to the Congress, the executive branch



                                              8
shall construe such provisions in a manner consistent with the President’s constitutional
authority to supervise the unitary executive branch and to submit for congressional
consideration such measures as the President judges necessary and expedient.”), with,
e.g., Statement on Signing the Shark Finning Prohibition Act, 3 Pub. Papers of William J.
Clinton 2782, 2782 (2000-2001) (“Because the Constitution preserves to the President the
authority to decide whether and when the executive branch should recommend new
legislation, Congress may not require the President or his subordinates to present such
recommendations (section 6). I therefore direct executive branch officials to carry out
these provisions in a manner that is consistent with the President's constitutional
responsibilities.”). See also Statement on Signing the Balanced Budget Act of 1997, 2
Pub. Papers of William J. Clinton 1053, 1054 (1997) (“Section 4422 of the bill purports
to require the Secretary of Health and Human Services to develop a legislative
proposal . . . . I will construe this provision in light of my constitutional duty and
authority to recommend to the Congress such legislative measures as I judge necessary
and expedient, and to supervise and guide my subordinates, including the review of their
proposed communications to the Congress.”) (emphasis added); Statement on Signing the
Treasury and General Government Appropriations Act, 2 Pub. Papers of William J.
Clinton 1339, 1340 (1997) (“Any broader interpretation of the provision that would apply
to ‘nonwhistleblowers’ would raise substantial constitutional concerns in depriving the
President and his department and agency heads of their ability to supervise and control
the operations and communications of the executive branch. I do not interpret this
provision to detract from my constitutional authority in this way.”) (emphasis added).

        Presentment Clauses/Bicameralism/INS v. Chadha. Presidents commonly
raise concern when Congress purports to authorize a single House of Congress to take
action on a matter in violation of the well established rule, embodied in the Supreme
Court’s decision in INS v. Chadha, 462 U.S. 919, 958 (1983), that Congress can act only
by “passage by a majority of both Houses and presentment to the President.” U.S.
Const., art. I, § 7 (requiring that bills and resolutions pass both Houses before being
presented to the President). By our count, President Bush raised this particular concern in
55 of his 126 constitutional signing statements. Again, President Bush followed in the
footsteps of prior Presidents, including President Clinton, in raising this concern in
various signing statements. Compare, e.g., Statement on Signing the Departments of
Labor, Health and Human Services, and Education, and Related Agencies
Appropriations Act, 41 Weekly Comp. Pres. Doc. 1920, 1920 (Dec. 30, 2005) (President
Bush) (“The executive branch shall construe certain provisions of the Act that purport to
require congressional committee approval for the execution of a law as calling solely for
notification, as any other construction would be inconsistent with the constitutional
principles enunciated by the Supreme Court of the United States in INS v. Chadha.”),
with, e.g., Statement on Signing the Consolidated Appropriations Act, FY 2001, 3 Pub.
Papers of William J. Clinton 2770, 2776 (2000-2001) (“There are provisions in the Act
that purport to condition my authority or that of certain officers to use funds appropriated
by the Act on the approval of congressional committees. My Administration will
interpret such provisions to require notification only, since any other interpretation would
contradict the Supreme Court ruling in INS v. Chadha.”).




                                             9
         Appointments Clause. The Appointments Clause of the Constitution, U.S.
Const., art. II, § 2, provides that the President, with the advice and consent of the Senate,
shall appoint principal officers of the United States (heads of agencies, for example); and
that “inferior officers” can be appointed only by the President, by the heads of
“Departments” (agencies), or by the courts. Presidents commonly raise a concern when
bills seem to restrict the President’s ability to appoint officers, or to vest entities other
than those specified in the Constitution with the power to appoint officers. By our count,
President Bush raised this concern in 25 of his 126 constitutional signing statements.
President Bush’s signing statements on this point are nearly identical to President
Clinton’s. Compare, e.g., Statement on Signing the Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users, 41 Weekly Comp. Pres. Doc. 1273, 1273
(Aug. 10, 2005) (President Bush) (“The executive branch shall construe the described
qualifications and lists of nominees under section 4305(b) as recommendations only,
consistent with the provisions of the Appointments Clause of the Constitution.”), with,
e.g., Statement on Statement on Signing the Gramm-Leach-Bliley Act (Nov. 12, 1999), 2
Pub. Papers of William J. Clinton 2082, 2084 (1999) (“Under section 332(b)(1) of the
bill, the President would be required to make such appointments from lists of candidates
recommended by the National Association of Insurance Commissioners. The
Appointments Clause, however, does not permit such restrictions to be imposed upon the
President's power of appointment. I therefore do not interpret the restrictions of section
332(b)(1) as binding and will regard any such lists of recommended candidates as
advisory only.”).

         Confidentiality of national security information. The Supreme Court has held
that the Constitution gives the President authority to control the access of Executive
Branch officials to classified information. The Supreme Court has stated that the
President’s “authority to classify and control access to information bearing on national
security and to determine whether an individual is sufficiently trustworthy to occupy a
position in the Executive Branch that will give that person access to such information
flows primarily from this constitutional investment of power in the President and exists
quite apart from any explicit congressional grant.” Dep’t of Navy v. Egan, 484 U.S. 518,
527 (1988). Presidents commonly have issued signing statements when newly enacted
provisions might be construed to involve the disclosure of sensitive information. See,
e.g., Statement by the President Upon Approval of Bill Amending the Naval Security Act
of 1954, Pub. Papers of Dwight D. Eisenhower 549, 549 (1959) (“I have signed this bill
on the express premise that the three amendments relating to disclosure are not intended
to alter and cannot alter the recognized Constitutional duty and power of the Executive
with respect to the disclosure of information, documents, and other materials. Indeed,
any other construction of these amendments would raise grave Constitutional questions
under the historic Separation of Powers Doctrine.”).

        By our count, President Bush raised this concern in approximately 63 of his 126
constitutional signing statements. President Bush’s statements regarding this issue are
nearly identical to the statements issued by past Presidents, including Presidents
Eisenhower and Clinton. Compare, e.g., Statement on Signing Legislation on
Amendments to the Mexico-United States Agreement on the Border Environment



                                             10
Cooperation Commission and the North American Development Bank, 40 Weekly Comp.
Pres. Doc. 550, 550-51 (Apr. 5, 2004) (President Bush) (“Sections 2(5) and 2(6) of the
Act purport to require the annual report of the Secretary of the Treasury to include a
description of discussions between the United States and Mexican governments. In order
to avoid intrusion into the President's negotiating authority and ability to maintain the
confidentiality of diplomatic negotiations, the executive branch will not interpret this
provision to require the disclosure of either the contents of diplomatic communications or
specific plans for particular negotiations in the future.”), with, e.g., Statement on Signing
the National Defense Authorization Act for Fiscal Year 2000, 2 Pub. Papers of William J.
Clinton 1685, 1688 (1999) (“A number of other provisions of this bill raise serious
constitutional concerns. Because the President is the Commander in Chief and the Chief
Executive under the Constitution, the Congress may not interfere with the President's
duty to protect classified and other sensitive national security information or his
responsibility to control the disclosure of such information by subordinate officials of the
executive branch (sections 1042, 3150, and 3164) . . . . To the extent that these
provisions conflict with my constitutional responsibilities in these areas, I will construe
them where possible to avoid such conflicts, and where it is impossible to do so, I will
treat them as advisory. I hereby direct all executive branch officials to do likewise.”);
Statement on Signing the National Defense Authorization Act for Fiscal Year 1998, 2
Pub. Papers of William J. Clinton 1611, 1612 (1997) (Nov. 18, 1997) (President Clinton)
(“Because of the President’s constitutional role, the Congress may not prevent the
President from controlling the disclosure of classified and other sensitive information by
subordinate officials of the executive branch.”).

        Foreign Affairs and Power as Commander in Chief. President Bush also has
used signing statements to safeguard the President’s well-established role in the Nation’s
foreign affairs and the President’s wartime power. These signing statements also are in
keeping with the practice of his predecessors. See, e.g., Louis Fisher, Constitutional
Conflicts between Congress and the President 134 (4th ed. rev.1997) (noting that
President Wilson expressed an intention not to enforce a provision on the grounds it was
unconstitutional because Congress did not have the authority to direct the President on
the conduct of foreign affairs) (citation omitted); Statement on Signing the General
Appropriations Act, Pub. Papers of Harry S. Truman 616 (1950) (Statement on Signing
the General Appropriations Act of 1951) (“I do not regard this provision [involving loans
to Spain] as a directive, which would be unconstitutional, but instead as an authorization,
in addition to the authority already in existence under which loans to Spain may be
made.”); Statement on Signing the Military Appropriations Authorization Bill, Pub.
Papers of Richard M. Nixon 1114, 1114 (1971) (Mansfield Amendment setting a final
date for the withdrawal of U.S. Forces from Indochina was “without binding force or
effect”); Statement on Signing the FY 1980-81 Department of State Appropriations Act, 2
Pub. Papers of Jimmy Carter 1434, 1434 (1979) (“Congress cannot mandate the
establishment of consular relations at a time and place unacceptable to the President”).

        Some have argued that President Bush has increased the use of Presidential
signing statements, but any such increase must be viewed in light of current events and
the legislative response to those events. While President Bush has issued numerous



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signing statements involving foreign affairs and his power as Commander in Chief, the
significance of legislation affecting national security has increased markedly since the
September 11th attacks and Congress’s authorization of the use of military force against
the terrorists who perpetrated those attacks. Even before the War on Terror, President
Clinton issued many such statements. See, e.g., Statement on Signing the Omnibus
Consolidated and Emergency Supplemental Appropriations Act, 2 Pub. Papers of
William J. Clinton 1843, 1847 (1998) (“Section 610 of the Commerce/Justice/State
appropriations provision prohibits the use of appropriated funds for the participation of
U.S. armed forces in a U.N. peacekeeping mission under foreign command unless the
President’s military advisers have recommended such involvement and the President has
submitted such recommendations to the Congress . . . [which] unconstitutionally
constrain[s] my diplomatic authority and my authority as Commander in Chief, and I will
apply them consistent with my constitutional responsibilities.”); Statement on Signing the
Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996, 1 Pub. Papers of
William J. Clinton 433, 434 (Mar. 12, 1996) (“Consistent with the Constitution, I
interpret the Act as not derogating from the President's authority to conduct foreign
policy. . . . While I support the underlying intent of these sections, the President's
constitutional authority over foreign policy necessarily entails discretion over these
matters. Accordingly, I will construe these provisions to [b]e precatory.”).

        Unitary Executive. Some critics have focused in particular on signing statements
that make reference to the President’s authority to supervise the “unitary executive.”
Although the phrase has been used by critics to mean many things in recent months, at
bottom, the core idea of a “unitary executive” is that, because “[t]he executive power
shall be vested in [the] President” under the Constitution, U.S. Const., art. II, § 1, the
President has broad authority to direct the exercise of discretion by officials within the
Executive Branch. As several scholars concluded after an exhaustive survey of historical
practice, “each of the first thirty-two presidents—from George Washington up through
Franklin D. Roosevelt—believed in a unitary executive” and “every president between
1945 and 2004 defended the unitariness of the executive branch.” Christopher S. Yoo,
Steven G. Calabresi, and Anthony J. Colangelo, The Unitary Executive in the Modern
Era, 1945-2004, 90 Iowa L. Rev. 601, 608, 730 (2005).

        President Bush’s statements that he intends to construe particular statutory
provisions consistent with his constitutional obligation to “supervise the unitary
Executive Branch” are indistinguishable from similar statements made by past Presidents
of both parties. For example, President Reagan in 1987 issued the following signing
statement:

       I wish to make clear my understanding that sections 252(a)(1) and (2) of
       the amended Act—which direct the President to issue an order "in strict
       accordance" with the report submitted by the Office of Management and
       Budget—do not preclude me or future Presidents from exercising our
       authority to supervise the execution of the law by overseeing and directing
       the Director of OMB in the preparation and, if necessary, revision of his
       reports. If this provision were interpreted otherwise so as to require the



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       President to follow the orders of a subordinate, it would plainly constitute
       an unconstitutional infringement of the President's authority as head of a
       unitary Executive branch.

Statement by President Ronald Reagan upon Signing H.J. Res. 324, 2 Pub. Papers of
Ronald W. Reagan 1096, 1097 (Sept. 29, 1987) (emphasis added). See also, e.g.,
Statement by President William J. Clinton upon Signing the Balanced Budget Act of
1997, 2 Pub. Papers of William J. Clinton 1053, 1054 (1997) (“Section 4422 of the bill
purports to require the Secretary of Health and Human Services to develop a legislative
proposal . . . . I will construe this provision in light of my constitutional duty and
authority to recommend to the Congress such legislative measures as I judge necessary
and expedient, and to supervise and guide my subordinates, including the review of their
proposed communications to the Congress.”) (emphasis added); Statement by President
William J. Clinton upon Signing the Treasury and General Government Appropriations
Act, 2 Pub. Papers of William J. Clinton 1339, 1340 (1997) (“Any broader interpretation
of the provision that would apply to ‘nonwhistleblowers’ would raise substantial
constitutional concerns in depriving the President and his department and agency heads
of their ability to supervise and control the operations and communications of the
executive branch. I do not interpret this provision to detract from my constitutional
authority in this way.”) (emphasis added); Statement by President George Bush upon
Signing H.R. 3792, 1 Pub. Papers of George H.W. Bush 239, 241 (Feb. 16, 1990) (“I
shall interpret these provisions consistent with my authority as head of the unitary
executive branch.”) (emphasis added); Statement by President George Bush upon Signing
H.R. 5019, 2 Pub. Papers of George H.W. Bush 1561, 1562 (Nov. 5, 1990) (“This
provision must be interpreted in light of my constitutional responsibility, as head of the
unitary executive branch, to supervise my subordinates.”) (emphasis added).

        Similarly, during the Carter Administration, the Justice Department published a
legal opinion stating that “[t]he ordinary duties of officers prescribed by statute come
under the general administrative control of the President by virtue of the general grant to
him of the executive power, and he may properly supervise and guide their construction
of the statutes under which they act in order to secure that unitary and uniform execution
of the laws which Article II of the constitution evidently contemplated in vesting general
executive power in the President alone.” Administrative Procedure—Rulemaking—
Department of the Interior—Ex Parte Communications—Consultation with the Council
of Economic Advisors—Surface Mining Control and Reclamation Act (30 U.S.C. § 1201
et seq.), 3 Op. O.L.C. 21, 23 (1979). The specific phrasing used in these signing
statements is not unique, and indeed employs language that was already well settled by
the mid-Nineteenth Century. For example, Attorney General Cushing wrote in an 1854
opinion that the “settled constitutional theory” was that “executive discretion exists, and
that judgment is continually to be exercised, yet required unity of executive action, and,
of course, unity of executive decision.” Offices and Duties of Attorney General, 6 Op.
Att’y Gen. 326 (1854). These statements explaining the President’s authority to
supervise the Executive Branch in the execution of the law are uncontroversial and
consistent with well-established law. The Supreme Court specifically has stated that the
President has the power to “supervise and guide [Executive officers’] construction of the



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statutes under which they act in order to secure that unitary and uniform execution of the
laws which Article II of the Constitution evidently contemplated in vesting general
executive power in the President alone,” Myers v. United States, 272 U.S. 52, 135 (1926).
More recently, the Court has explained that “[i]nterpreting a law enacted by Congress to
implement the legislative mandate is the very essence of ‘execution’ of the law.”
Bowsher v. Synar, 478 U.S. 714, 733 (1986).

                                            III.

        Until recently, every scholarly discussion of signing statements of which we are
aware simply counted the number of bills about which a President had made
constitutional signing statements. Under that traditional measure, the number of signing
statements President Bush has issued is, as I have just explained, comparable to the
number issued by Presidents Reagan, George H.W. Bush, and Clinton.

         Recently, persons critical of the President’s use of signing statements have
adopted the novel measure of counting the number of individual provisions referenced in
signing statements. We believe that is a misleading statistic, because President Bush’s
signing statements tend to be more specific in identifying provisions than his
predecessors’ signing statements. President Clinton, for example, routinely referred in
signing statements to “several provisions” or “a number of provisions” that raised
constitutional concerns without enumerating the particular provisions in question. See,
e.g., Statement on Signing the Consolidated Appropriations Act, FY 2001, 3 Pub. Papers
of William J. Clinton 2770, 2776-77 (Dec. 21, 2000) (“There are provisions in the Act
that purport to condition my authority or that of certain officers to use funds appropriated
by the Act on the approval of congressional committees. My Administration will interpret
such provisions to require notification only, since any other interpretation would
contradict the Supreme Court ruling in INS v. Chadha.” “Several provisions of the Act
also raise concerns under the Recommendations Clause. These provisions purport to
require a Cabinet Secretary or other Administration official to make recommendations to
Congress on changes in law. To the extent that those provisions would require
Administration officials to provide Congress with policy recommendations or draft
legislation, I direct these officials to treat any such requirements as precatory.”)
(emphasis added); Statement on Signing Consolidated Appropriations Legislation for
Fiscal Year 2000, 2 Pub. Papers of William J. Clinton 2156, 2160 (Nov. 29, 1999) (“to
the extent these provisions could be read to prevent the United States from negotiating
with foreign governments about climate change, it would be inconsistent with my
constitutional authority”; “This legislation includes a number of provisions in the various
Acts incorporated in it regarding the conduct of foreign affairs that raise serious
constitutional concerns. These provisions would direct or burden my negotiations with
foreign governments and international organizations, as well as intrude on my ability to
maintain the confidentiality of sensitive diplomatic negotiations. Similarly, some
provisions would constrain my Commander in Chief authority and the exercise of my
exclusive authority to receive ambassadors and to conduct diplomacy. Other provisions
raise concerns under the Appointments and Recommendation Clauses. My
Administration's objections to most of these and other provisions have been made clear



                                            14
in previous statements of Administration policy and other communications to the
Congress. Wherever possible, I will construe these provisions to be consistent with my
constitutional prerogatives and responsibilities and where such a construction is not
possible, I will treat them as not interfering with those prerogatives and responsibilities.”)
(emphasis added). If, as the CRS and many scholars have indicated, the substance of the
President’s signing statements is unobjectionable, it is no fault that those statements
specifically identify the provisions at issue. Indeed, doing so tends to promote the
constitutional dialogue between the branches.

                                     *   *    *    *   *

        The constitutional signing statements discussed here are a small, but central,
sampling of the many statements issued by American Presidents. These statements are an
established part of the President’s responsibility to “take Care that the Laws be faithfully
executed.” U.S. Const., art. II, § 3. Members of Congress and the President will
occasionally disagree on a constitutional question. This disagreement does not relieve
the President of the obligation to interpret and uphold the Constitution, but instead
supports the candid public announcement of the President’s views.




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